Thornton v. Barber — 48 A.D. 298

Majority

p. 298

Mary L. N. Thornton, Appellant, v. Adaline Barber, Respondent.

Headnote

Partnership—an agreement by which one party is to furnish land which the other is to worlc, the profits to be divided, creates a copartnership a Justice’s Court has no equity jurisdiction.-

An agreement entered into between two parties by which one of them is to furnish a quantity of land to be laid out as a peach orchard and to pay one-half of the expenses of developing the orchard, and the other party is to contribute his skill and labor and pay the other half of the expenses, the fruit to be divided between them share and share alike, creates a partnership.

A Justice’s Court has no jurisdiction of an action wihich necessarily involves an accounting between copartners.

Appeal by the plaintiff, Mary L. N. Thornton, from a judgment of the County Court of Livingston county in favor of the defendant, rendered on the 8th day of May, 1899, and entered in the office of the clerk of the county- of Livingston upon the decision of the court reversing a judgment rendered by a justice of the peace in favor of the plaintiff.

The action was commenced in December, 1898, in Justice’s Court. The complaint alleged that the defendant and one Clarence B. Thornton engaged “ in a joint adventure, which enterprise or agreement was in writing and signed by the parties.”

" The agreement was made a part of the complaint, and provided in substance that the defendant should furnish about seven acres of land in the county of Livingston, for the purpose of raising a peach orchard; “ said land to ’be furnished to the copartnership to be entered into between the parties of the first and second parts for the

p. 299

above-named purpose, for a period of twenty years from date of above agreement, or so long as it is used as a peach orchard, without charge for rent in the time.”

The said Clarence B. Thornton and the defendant each agreed to pay one-half of the expenses connected with the raising of such orchard. It was further provided that when said orchard should produce fruit the profits should be divided equally- between the parties, share and share alike.

It is alleged that, pursuant to said agreement, the peach orchard was set out; that when it was sufficiently developed so that it produced fruit, the same was divided in accordance with the terms of the contract, until the year 1895 ; that in September, 1895, the said Clarence B. Thornton conveyed -all his right, title and interest in and to the agreement to the plaintiff,-Mary L. N. Thornton. The complaint further alleges that in the year 1898 the defendant entered upon the orchard and harvested and sold the entire product of the same and retained the avails thereof; that the plaintiff demanded one-half of the net profits of the product of such orchard for the year 1898, which was refused. The plaintiff demanded judgment for the one-half of the net profits of said fruit, which was alleged to be the sum of $200.

The defendant answered the complaint by alleging that the justice of the peace had no jurisdiction of the parties to said action, or of the subject-matter alleged in the complaint. It was further alleged that the plaintiff’s assignor had failed to perform the conditions of said contract to be performed, by him, and- that he had wholly abandoned said contract and its performance. The defendant also set up a counterclaim to" an amount of $150, for moneys paid out and expended in the carrying on and maintenance of the peach orchard, which the plaintiff or her assignor should have paid by the terms of the contract.

There is no allegation in the complaint that any agreement had been reached between the parties as to what sum was due to the plaintiff on account of the joint enterprise, and no allegation that the defendant had promised or agreed to pay any sum whatsoever, independent of the contract above referred tó. The proceedings before the justice of the peace were in the :nature of an accounting and much evidence was given tending to show the expenditures

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made by the parties to the contract in raising and developing the peach orchard, the value of the product raised prior to the commencement of this action, and the cost of harvesting and caring for the several crops so raised. At the close of the evidence it was determined by the justice that there was a balance due and owing by the defendant to the plaintiff by reason of all the transactions had under and in pursuance of the Contract of the sum of thirty-four dollars and twenty-three cents, and judgment' was awarded by the justice in favor of the plaintiff for that amount, together with nine dollars and twenty-six cents costs, amounting in all to forty-three dollars and forty-nine cents. From that judgment appeal was taken to the County Court and the judgment of the justice was reversed, and from that judgment of reversal this appeal is taken..

George W. Harding, for the appellant.

Fletcher C. Peck, for the respondent.

It is clear that the contract entered into between the defendant and the plaintiff’s assignor made them copartners. The property of the defendant, to wit, her seven acres of land, by the terms of the contract, was combined with the labor and skill of the plaintiff’s assignor for their common profit; and the defendant was to pay one-half of the expense of raising and developing the peach orchard and the other one-half of the- expenses was to be paid by the plaintiff’s assignor; so that, by the terms of the contract, the defendant was to put her land against the labor of the plaintiff’s'assignor; each was to pay one-half of the expenses, and this was for their joint profit, to be realized when the orchard should bear fruit. Such an arrangement constituted a partnership, and comes within the recognized definitions of that relation. (Pars. Cont. *147.)

The Justice’s Court had no jurisdiction of the action, it necessarily and only involving an accounting between copartners, which is cognizable by a court of equity only.. (See Wilcox v. Pratt, 125 N. Y. 688 ; S. C., 52 Hun, 340 .)

The judgment of the County Court should be affirmed, with costs.

All concurred.

Judgment of the County Court affirmed, with cbsts.

Cases cited

Wilcox v. Pratt 125 N. Y. 688 N.Y. 1890-12-02 p. 300